This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.

Tuesday, June 28, 2011

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). The case presents the issue of what I have called the "not for the truth" end-run in the context of expert evidence: The Illinois Supreme Court held that the absent analyst's report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case." I will write something more substantive on this later.

Friday, June 24, 2011

1. For the first time in a substantive Confrontation Clause opinion in the Crawford era (I’m not counting Whorton v. Bockting, on retroactivity), Justice Scalia didn’t write. In fact, as the senior justice in the majority, he assigned the opinion to Justice Ginsburg. I don’t know to what extent he felt he had to because he already had an opinion from the sitting. And she had none. But the assignment may reflect his understanding that continued development of the Confrontation Clause requires that it not be perceived as a one-man show.

2. Justice Kagan, although having signed an amicus brief for the Government in Melendez-Diaz, declines to join the four dissenters from that case. That is very good news.

3. Justice Ginsburg treated the case as the simple one that it was: The state introduced a report signed by one analyst (Caylor) without presenting the live testimony of that analyst or of any other witness who could testify at first hand to the matters asserted in the report. Thus, said Justice Ginsburg, “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way.” And for good measure, she cited a passage from Justice Kennedy’s dissent in Melendez-Diaz, saying that the Court’s holding meant that the “analyst who must testify is the person who signed the certificate.”

4. Justice Ginsburg also properly rejects the theory that there was no Confrontation Clause violation because Caylor was a “mere scrivener.” That theory was inapplicable on its facts: Caylor reported what he did as well as what the machine indicated. More fundamentally, as Justice Ginsburg points out, witnesses often report simple factual observations – the color of a traffic light, the number above a door, the speed shown by a radar gun. She asks whether an officer other than the observer could report the observations in court, so long as that second officer could report about any technology used and the department’s standard procedures. “As our precedent makes plain,” she answers, “the answer is emphatically ‘No.’” And again she is able to use a statement from Justice Kennedy’s Melendez-Diaz dissent: (“The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second.”).

5. As for the state’s contention that the report was not testimonial, Justice Ginsburg noted that the state supreme court had recognized that “Melendez-Diaz left no room for that argument,” and she correctly characterized this conclusion as “inescapable.” This portion of the opinion says that the formalities attending the report “are more than adequate” to characterize it as testimonial. That should not be read as requiring formality for a statement to be deemed testimonial, and footnote 3 of Justice Sotomayor’s concurrence, with the aid of language from her opinion for the Court in Michigan v. Bryant, makes this clear. But Justice Ginsburg treats the matter delicately, presumably because formality was (unfortunately) essential for Justice Thomas’s vote. It is not clear to me why Justice Thomas did not join footnote 6 of the majority opinion, but it is possible that he read it as encapsulating a test without a formality requirement for whether a statement is testimonial.

6. It is also somewhat mysterious why Justices Thomas, Sotomayor, and Kagan declined to join Part IV of Justice Ginsburg’s opinion (leaving Justice Scalia as the only member of the Court to join Justice Ginsburg's opinion in full; this split appears to be between those who are and those who are not opera fans, but I am not sure of the reason). This section addressed the question of the practical burden that the decision might impose on the states. It repeated what the Court had said in Melendez-Diaz, that this burden does not alter the constitutional rule; it cast doubt on the extent of the burden created, and it suggested some ways – including retesting and notice-and-demand statutes – that might limit the burden. Perhaps the three justices thought that most of this Part was unnecessary for decision and so should not have been included.

4. Justice Sotomayor clears up some of the uncertainty that arose from the reliability language in her Bryant opinion – at least to the extent of making clear that the language should not be accorded very much impact. Justice Kennedy’s dissent says that in Bryant the Court ruled that reliability is “an essential part of the constitutional inquiry” under the Confrontation Clause. Justice Sotomayor says in her concurrence that, “[c]ontrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be ‘relevant,’ not ‘essential.’” It’s not entirely clear what that sentence means (Justice Kennedy had said that reliability was an essential part of the inquiry, which is different from saying that reliability (or its negation) is essential to a determination that a statement is not (or is) testimonial), but the next sentence asserts a basic distinction underlying Crawford: “The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore require confrontation.” I suspected that the reliability language in Bryant was inserted at the instance of Justice Kennedy, and Justice Sotomayor’s treatment of it here seems to support that supposition; I’m hoping that Justice Sotomayor does not speak of reliability in the Confrontation Clause context again.

Justice Sotomayor does clearly mean something by her reference to hearsay rules. She repeats language from Bryant that in determining primary purpose for deciding whether a statement is testimonial under the Confrontation Clause hearsay rules will be relevant. But the language is capable of being understood as saying no more than that some hearsay rules carve out categories of statements that are not intended primarily for litigation and so are not testimonial. To a large extent, I agree. I believe many of the hearsay rules have grown up conforming to confrontation principles – that is, statements made with litigation in mind have tended to be excluded, and others have tended to be admitted. But this description of reality should not be taken as prescription – that is, simply because a statement fits within a hearsay exception as that exception has come to be construed does not mean that it is not testimonial. Melendez-Diaz should have made this clear.

7. Just who is it that must testify subject to confrontation under the Court’s holding? At one point, the Court says that it is “the analyst who made the certification,” but a couple of sentences before the Court says the question is whether a report containing a certification may be introduced “through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” I think actually the “observe” part is, or should be critical (recognizing that one who performs a test necessarily observes (through one or more of the senses) performance of the test. First, observation is sufficient: Analyst B could properly testify, “I observed everything Analyst A did, and her report is an accurate rendition of what I observed.” (I do think that in a case of this sort, the defense would be entitled to an instruction that the jury should not put any weight on the credibility of Analyst A.) That is particularly important in autopsy cases, in which it is standard procedure in some jurisdictions (and probably ought to be standard in all) to have a second medical examiner in the room. Second, I believe observation is necessary. It should not satisfy the Confrontation Clause, for example, if A performs a test, writes up a report but leaves it unsigned, and then passes it on to B, who did not observe the test but who signs the report and then testifies in court to its contents. In other words, I believe the Confrontation Claus necessarily incorporates a personal knowledge requirement.

8. Justice Sotomayor includes a section indicating the limited nature of the holding. She points out that the report had no purpose other than use in litigation, and indicates that it would be a different matter if the report was necessary to provide medical treatment. I think this example (which the Court has touched on before) indicates one of the problems with the “primary purpose” test: Some reports made in the clear anticipation of evidentiary use can also be justified on medical grounds, and it may be easy for the reporter and the prosecution to persuade a court that the primary purpose was medical.

Justice Sotomayor also points out that this is not a case in which the in-court witness “was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” The good news there is that she appears to recognize that if the underlying report is admitted into evidence and it appears to support the opinion of the in-court witness only to the extent it is true, then the author of the report should be deemed to be a witness subject to confrontation; saying that the report is being used only to support the opinion of the witness in court cannot be used as a talisman to avoid a confrontation problem. But what if the underlying report is not introduced into evidence? Justice Sotomayor points to Fed. R. Evid. 703 as supporting the proposition that an expert may base an opinion on facts or data not themselves admissible into evidence if they are of a type reasonably relied upon by experts in the field. But it must be remembered that Rule 703 is not a rule of historically long standing; it is a creation of the late 20th century, adopted with no sensitivity to the confrontation right. A concern is that the in-court witness’s testimony may be another way of packaging and transmitting to the jury the testimonial statement made by the out-of-court witness. This strikes me as a difficult issue, and we should not assume that Rule 703 states a principle of constitutional law. But I suspect that one of the next attempts to evade the impact of Melendez-Diaz will be to have the in-court witness express an opinion that has somewhat more content than the written report, and then argue that the report was merely one input that led the in-court witness to reach her opinion.

Finally, Justice Sotomayor suggests the possibility that a state could, “assuming an adequate chain of custody foundation,” present the printout from a machine. Maybe so, but the authentication would be difficult without a live witness. The person typing in, say, the suspect’s name may be making a testimonial assertion that the sample about to be tested is that of the suspect. So the printout is not completely “raw.”

9. Obviously, I don’t think much of Justice Kennedy’s dissent. I think Justice Ginsburg is right that the dissenters are objecting more to Crawford and Melendez-Diaz than they are to the application in this case. He insists, as noted above, that reliability is “an essential part” of the inquiry under the Confrontation Clause, which clearly flies in the face of Crawford – I don’t think he could reasonably contend that reliability makes a statement non-testimonial. Indeed, he explicitly uses the “indicia of reliability” standard that was the hallmark of Ohio v. Roberts. And he says quite explicitly that what he perceives as “trouble fashioning a clear vision” of Crawford’s meaning is “symptomatic of a rule not amenable to sensible application.” (Of course, one of the opinions that he cites as showing a range of interpretations is the majority opinion in Bryant; eliminate that one, and a good deal of confusion would disappear.) We should bear in mind that Crawford was a transformative decision and it is only seven years old; it is not all that surprising and not at all disturbing that the law remains unsettled. Justice Kennedy makes no attempt, so far as I can tell, to argue that the certificate here was not testimonial (he lost that battle in Melendez-Diaz) and the weight of his opinion seems to be to show that insisting on the testimony of the only analyst who observed the test is a “hollow formality” not worthwhile because (a) it will not produce much useful information; (b) the costs of requiring that analyst to testify live are oppressive; and (c) surrogate testimony is a pretty good substitute. As in Melendez-Diaz, the majority’s response to each of these is, in effect, “Irrelevant, and not true in any event.”

In a passage that I believe expresses what has been a particular concern of Justice Breyer, the dissent says, “In cases like Melendez-Diaz and this one, the Court has tied the Confrontation clause to 18th century hearsay rules unleavened by principles tending to make those rules more sensible.” That’s an odd statement, given that a major point of Crawford was to divorce confrontation law from the rules against hearsay. I think a more accurate statement would be this: During the two centuries following adoption of the Confrontation Clause, courts lost sight of the confrontation right, relying instead on an increasingly amorphous hearsay rule to do the work that an independently articulated confrontation right should have done. Accordingly, in the 20th century, some jurisdictions made the judgment, which seems pragmatically sensible only if one gives no independent weight to the right, that a prosecutor could present the results of a forensic lab test without producing a live witness who had observed performance of the test. But if one recognizes that the right is independent of whatever hearsay rules a jurisdiction might adopt, and that it is a rule governing the procedures by which prosecution witnesses give testimony, insisting that (absent stipulation) testimony be given live in the presence of the accused, then the results in Melendez-Diaz and Bullcoming become quite obvious.

I thought the majority opinion in Melendez-Diaz was a great one, and that the dissent by four justices showed a disturbing lack of understanding of what the confrontation right is all about. I have much the same feeling about Bullcoming. Right result, properly reasoned, but one vote away from an abyss – avoided only because the statement was a formal one, so that Justice Thomas’s vote was not lost. And with the dissent’s endorsement of using reliability – and even the old “indicia of reliability” formulation – as a test for applying the confrontation right, and its suggestion that Crawford can’t be made to work, the divide seems even starker than before.

Thursday, June 23, 2011

The Supreme Court has reversed the decision in Bullcoming, 5-4 per Justice Ginsburg. Right result, too close. That's all I know as of now. I have to speak about the case, and others, in 90 minutes to the state solicitors general, and then I'll be traveling; it may be awhile til I have substantive comments.

Wednesday, June 15, 2011

I had virtually completed the post below when Bullcoming was decided, and then I had to put it aside for a while. As it happens, the two issues discussed here are both involved in Williams v. Illinois. I hope to write later on Williams, but for now I'll post this without further reference to that case.

In 2008, I wrote a post titled No confrontation issue if the statement isn’t even offered. I believe my analysis of the case discussed there was correct, but the title was overstated. Prosecutors occasionally try to evade the Confrontation Clause by offering, rather than the actual words of a statement, evidence from which the substance of the statement can be inferred. This attempt should not be countenanced. So we have what actually can be a tricky problem, determining when a statement is sufficiently presented to invoke the Confrontation Clause.

Courts are sometimes but not always alert to the problem, which sometimes is tied to another problem that I have labeled the "not-for-truth end run".

Jeff Fisher has brought to my attention a particularly crude prosecutorial attempt at evasion, one that fooled a district judge but was corrected by the First Circuit. United States v. Meises, 2011 WL 1817855 (1st Cir. May 13, 2011).

After being arrested, one Rubis gave an interview to DEA agents. The prosecutor recognized that statements made by Rubis during this interview were testimonial, and so decided not to offer the “actual statements”. Instead, the prosecutor established through one of the agents that Rubis had agreed to cooperate, and that he was interviewed alone. This exchange followed:

Q: After this interview, did the targets of your investigation at this point change?

A: Yes, sir.

Q: Okay. After this interview, what did you decide to do with Defendant [Reyes–Guerrero]?

The agent then testified that Reyes-Guerrero and Meises were processed and taken to a federal detention facility.

(As an aside, the only objection made at trial explicitly referred only to the hearsay rule, and the district judge held that the statement was admissible because it was by a co-conspirator. This is incorrect as a matter of hearsay law, as the First Circuit noted, because Rubis had already been arrested. It also does not address the Confrontation Clause issue, which the First Circuit held was adequately raised by the hearsay objection.)

On the merits, the First Circuit held “that a reasonable jury could only have understood [the testifying agent] to have communicated that Rubis had identified appellants as participants in the drug deal. It makes no difference that the government took care not to introduce Rubis's ‘actual statements.’

And, the court added, “any other conclusion would permit the government to evade the limitations of the Sixth Amendment and the Rules of Evidence by weaving an unavailable declarant's statements into another witness's testimony by implication.”

I think the First Circuit got it basically right, though I would put the governing standard somewhat differently. I think the key point is not quite whether “a reasonable jury could only have understood” that the in-court witness was communicating the substance of an out-ofhttp://www.blogger.com/img/blank.gif-court statement; the evidence might be ambiguous and still create a confrontation problem. I think I might instead pose this question:

Is the prosecution, in offering the evidence on a given ground, effectively asking the jury to, or is there an excessive risk that the jury will

(a) infer that the in-court witness is effectively communicating some or all of the substance of an out-of-court testimonial statement, and

(b) use that statement as proof of the truth of an assertion it makes?

See Ocampo v.http://www.blogger.com/img/blank.gif Vail, 2011 WL 2275798 (9th Cir. June 9, 2011) (concluding that before Crawford it was clearly established that "testimony from which one could determine the critical content of the out-of-court statement was sufficient to trigger Confrontation Clause concerns" and that Crawford did not alter this result; finding a violation in part on the basis of an in-court witness's statement that "did convey some critical substance" of the out-of-court testimonial statement); State v. Swaney, 787 N.W.2d 541 (Minn. 2010)(trial court "violates the Confrontation Clause when it admits testimony that inescapably implies a nontestifying witness's testimonial hearsay statement").

In Meises, I think the answer is affirmative. Apparently, the prosecution offered the testimony on the ground that it explained the subsequent conduct of the officers. But how would it do that? The most natural, if not the only, plausible inference is that Rubis made a statement suggesting guilt on the part of the defendants, and that the officers believed it. Why does that matter? The most likely use that the jury will make of the evidence is to conclude that the officers got it right, and had good reason to arrest the defendants.

And this is where the "not for truth" end run comes in. The prosecution says that it was only offering the evidence to explain the conduct of the police. The First Circuit properly rejected this argument, elaborating on “the limitations on so-called background or context evidence” in a footnote that included this passage:

We take it to be common ground that the government may not have an agent testify, “X told us that the defendant was involved in the crime.” Quoting X's out-of-court accusation remains impermissible if the agent's testimony is changed to say, “We began to investigate the defendant because X told us that the defendant was involved in the crime,” and the government seeks to justify it by arguing that X's out-of-court statement was offered not for its truth but only to explain why the agent focused on (or arrested) the defendant. Nor does the result change if, instead of quoting the out-of-court statement, the government communicates its content to the jury by implication.

The simple fact is that in a case of this sort the jury doesn't need to know why the police arrested the defendants -- apart from knowing the evidence properly presented to them. But there is a very real danger that the jury will conclude that the out-of-court speaker made a truthful accusation to the police. And so the First Circuit properly decided that whatever valid probative value the evidence might have had was outweighed by the prejudicial danger of the evidence. That sounds like a discretionary ruling under Fed. R. Evid. 403 or a state counterpart. But it goes beyond that. Because the probative value for setting context is so minimal, and because there is a substantial probability that the jury will use the evidence to infer that a testimonial statement was made and is true, thus greatly aiding the prosecution, in this context the balance indicates that in effect the prosecution has presented a testimonial statement for the truth of an assertion it made. And so this is a judgment used to determine whether the Confrontation Clause is invoked -- it is not merely a discretionary matter of weighing on which an appellate court should defer to a trial court.

My comments here are of a piece with the standard I tentatively offered in a 2007 post, Conflict deepens on expert evidence, on the general question of judging when a testimonial statement supposedly not offered for the truth raises a Confrontation Clause problem:

It seems that a court . . . must first ask whether the testimonial http://www.blogger.com/img/blank.gifstatement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative . . . then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the trhttp://www.blogger.com/img/blank.gifuth of what it asserts.

Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.

So clearly in Tucker the prosecutor did to ask the jury to infer the truth of a statement that could not itself be admitted; the logic of the offer did not require that. There may have been some risk that the jury would infer such a statement, but (a) the jury would not necessarily know what basis of information the prosecutor had for asking the question, and (b)the risk of such an inference is made much more tolerable by the fact that the defendant opened the door to impeachment by denying a proposition that the prosecution had good reason to believe was true. So neither aspect of the test I have suggested was violated.